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16 St. John's J. Legal Comment. 165 (2002)
Taking Fault with New York's Fault-Based Divorce: Is the Law Constitutional

handle is hein.journals/sjjlc16 and id is 173 raw text is: TAKING FAULT WITH NEW YORK'S FAULT-
New York remains one of a handful of states in the country
where it is still not possible to obtain a no-fault divorce unless
there is the consent of both parties.' Following California's lead
in 1970,2 about half of the states have instituted pure no-fault
divorce laws, which provide for divorce upon one party's claim
that irreconcilable differences have caused the irremediable
Class of January 2002, St. John's University School of Law.
1 See N.Y. DoM. REL. LAW §170 (6) (Consol. 2000) (giving permissible grounds for
divorce); see, e.g., MISS. CODE ANN. § 93-5-2 (1999) (requiring joint petition with
separation agreement); TENN. CODE ANN. § 36-4-101(12) (2000) (requiring both parties to
be in agreement on terms of marital dissolution before court will grant no-fault divorce).
See generally Doris Jonas Freed & Timothy B. Walker, FamilyLawin the Fifty States, 21
FAM. L.Q. 417, 440-43 (1988) (pointing out all states have some form of no-fault divorce);
Gary H. Nichols, Covenant Marriage: Should Tennessee Join the Noble Experiment?, 29
U. MEM. L. REV 397, 422 (1999) (stating claim of irreconcilable differences may not be
pursued unilaterally by one party without consent of other); Doris Jonas Freed & Joel R.
Brandes, No More Messin' with Hessen, N.Y.L.J. Aug. 17, 1988, at 3 (stating New York is
only remaining jurisdiction in which living separate and apart is not grounds for
2 See CAL. FAM. CODE §§ 2310-2311 (Deering 2000); LENORE J. WErrZMAN, THE
WOMEN AND CHILDREN IN AMERICA 15 (The Free Press ed., Collier Macmillan Publishers
1985) (stating that under pure no-fault divorce fashioned in California, divorce could be
obtained (1) without grounds, (2) without proving prove fault or guilt or taking any moral
position, (3) by unilateral decision of one spouse, (4) without linking financial awards to
fault, (5) with standards that are gender neutral and (6) with procedures aimed at
reducing adversarial climate and fostering amicable divorce); see also Herbert Jacob, The
Silent Revolution: The Transformation of Divorce Law in the United States, reprinted in
86 MICH. L. REV. 1121, 1123 (1988) (explaining that no-fault was technical cover for
California's lenient divorce policy which had fostered visible industry of producing
fraudulent evidence of marital fault under old fault statute). See generally Walter
Wadlington, Divorce Without Fault Without Pejury, 52 VA. L. REV. 32, 85-87 (1966)
(pointing out that no-fault statutes containing living separate and apart provision
assure law applies only to those marriages that have ceased to function).

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